John Quincy Adams in The Jubilee of the Constitution, a Discourse, delivered in New York, 1839, has a statement of which more notice might have been profitably taken. He said: "The Declaration of Independence and the Constitution of the United States, are parts of one consistent whole founded upon one and the same theory of government, then new, not as a theory, for it had been working itself into the mind of man for many ages, and been especially expounded in the writings of Locke, but had never before been adopted by a great nation in practice.
"There are yet even at this day, many speculative objections to this theory. Even in our own country there are still philosophers who deny the principles asserted in the Declaration, as self-evident truths -- who deny the natural equality and inalienable rights of man -- who deny that the people are the only legitimate source of power -- who deny that all just powers of government are derived from the consent of the governed. Neither your time, nor perhaps the cheerful nature of this occasion, permit me here to enter upon the examination of this anti-revolutionary theory, which arrays state sovereignty against the constituent sovereignty of the people and distorts the Constitution of the United States into a league of friendship between confederate corporations. I speak to matters of fact. There is the Declaration of Independence and there is the Constitution of the United States -- let them speak for themselves. The grossly immoral and dishonest doctrine of despotic state sovereignty, the exclusive judge of its own obligations, and responsible to no power on earth or in heaven, for the violation of them, is not there."
The age-old theory here referred to was nothing more nor less than that of the Whigs and of the Medieval thinkers and schoolmen, and what distinguished it particularly from every other contemporaneous theory was, as J. Q. Adams here points out, its distinctive doctrine on the nature and source of sovereignty. Not only was it opposed to the modern post-Reformation and Renaissance conception of the State as absolute in its power; it also differed both in itself and, as we shall have occasion to see, in the thought of all leading Whigs, from the radical unrelated theories of Rousseau and of a good number of Protestant dissenters. What is more, there is a still further point not usually made sufficiently clear by those who have recently been insisting on the historical and philosophical importance of this doctrine. It was not consent alone but consent involving reservations that constituted the true basis of government. Consent as a practical source of power was recognized as far back as the time of Solon. The idea is far from foreign to Pagan writers and appears in Cicero{2} and in Ulpian. But then as the latter states: "that which seems good to the Emperor has the force of law; for the people by the lex regia which was passed to confer on him his power make over to him their whole power and authority."{3} Without fully appreciating the reason for this, Lord Acton very truly noted the fact that "the ancients understood the regulation of power better than the regulation of liberty They concentrated so many prerogatives in the State as to leave no footing from which a man could deny its jurisdiction."{4}
But as Christianity was gradually accepted with its new view of human nature, reason itself educated under the influence of revelation awoke to the full and clear perception of the fact that the very nature of man demanded that certain definite and essential limitations be set to the power of the State. As Francis Lieber in his work on Civil Liberty and Self-Government well says: "we observe that the priceless individual worth and value which Christianity gives to each human being by making him an individual responsible being with the highest duties and the highest privileges, together with advancing civilization . . . developed more and more the idea of individual rights and the idea of protecting them."{5} The idea of contract between government and governed, which, as understood and developed during the Middle Ages, necessarily presupposes this more definite and enlarged view of man's essential nature, appears for the first time in practical forms in the early coronation oath.{6} According to the early Visigothic code known as the Forum Judicum and framed largely by the Spanish clergy in the councils of Toledo, law is defined as "the emulator of divinity, the messenger of justice, the mistress of life. It regulates all conditions in the State, all ages of human life; it is imposed on women as well as on men, on the young as well as on the old, on the learned as well as on the ignorant, on the inhabitants of towns as well as on those of the country; it comes to the aid of no particular interest; but it protects and defends the common interests of all citizens. It must be according to the nature of things and the customs of the State, adapted to the time and place, prescribing none but just and equitable rules, clear and public, so as to act as a snare to no citizen."{7} In this same code it is also laid down that "The royal power, like the whole people, is bound to observe the laws."
Along with this idea of contract there was the clearer Christian concept of the natural law now considered as involving the due order founded in the nature of things and their essential relations, to which the free will of man ought to conform. In the words of St. Augustin "peace between man and God is the well-ordered obedience of faith to eternal law. Peace between man and man is well-ordered concord. Domestic peace is the well-ordered concord between those of the family who rule and those who obey. Civil peace is a similar concord among the citizens. The peace of the celestial city is the perfectly ordered and harmonious enjoyment of God and of one another in God. The peace of all things is the tranquillity of order. Order is the distribution which allots things equal and unequal, each to its own place."{8} This idea was fundamental to the whole subsequent history of Christendom and may be traced, in its application to civil society, not only throughout the Middle Ages proper, but even later in Dante's Convivio;{9} in Sir Thomas Eliot's book The Governor;{10} in the time of Henry VIII; in Richard Hooker's Ecclesiastical Polity,{11} written against the Puritans in the days of Elizabeth; in the writings of Michael de L'Hospital in the time of the Ligue in France; in Shakespeare's Troilus and Cressida;{12} in Fenelon's Direction pour la Conscience d'un Roi; in Burke's Appeal from the New to the Old Whigs,{13} and finally in Washington's First Inaugural Address, where he said "I dwell on this prospect (of the future) every satisfaction, which an ardent love for my country can inspire; since there is no truth more thoroughly established, than that there exists in the economy and course of nature an indissoluble union between virtue and happiness, between duty and advantage, between the genuine maxims of an honest and magnanimous policy, and the solid rewards of public prosperity and felicity; since we ought to be no less persuaded that the propitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right, which Heaven itself has ordained, and since the preservation of the sacred fire of liberty and the destiny of the republican model of government, are justly considered as deeply, perhaps as finally staked on the experiment entrusted to the hands of the the American people." But in early form it is found applied with primitive simplicity in the Forum Judicum of the Spanish Visigoths, where it was declared "God, the Creator of all things, in arranging the structure of the human body, raised the head above, and willed that thence from should issue the nerves of all the members. And he placed in the head the torch of the eyes, that thence might be detected all things that might be injurious. And he established therein the power of the intellect, charging it to govern all the members, and wisely to regulate their action. We must therefore first regulate that which concerns princes, watch over their safety, protect their life; and then ordain that which has relation to peoples, in such sort that, while suitably guaranteeing the safety of Kings, we may at the same time better guarantee that of the peoples."{14}
This insistence on the essential necessity of authority for the right ordering of society is characteristic of the Middle Ages For the problem of the times was not liberty primarily but the very maintenance of anything approaching well regulated civil life. Yet the rightful claims of the people, or the fact that the common good is the true end of the government, is never allowed to remain out of sight. At a time when Visigothic Kings were being murdered in rapid succession by their turbulent and ambitious nobles, to the great confusion of the nation, Isidore of Seville, while deploring this fact, could still say "the ancients made no distinction between Kings and tyrants; but amongst us it has become the custom to designate by the name of tyrants the evil Kings who crush the people under the weight of their ambition and their cruelty."{15} St. Paul had declared that "there is no power but of God." But Doctors of the Church such as St. Ambrose{16} and St. John Chrysostom had made it clear that this should not be understood as furnishing any ground for arbitrary rule. Preaching within the jurisdiction of the despotic Emperors of Constantinople the latter said "Nor am I now speaking about individual rulers but about the thing in itself. For that there should be rulers and some rule and others be ruled, and that all things should not just be carried on in one confusion, the people swaying like waves in this direction and that; this, I say, is the work of God's wisdom. Hence he (St. Paul) does not say "for there is no ruler but of God" but it is the thing he speaks of and says "there is no power but of God. And the powers that be, are ordained of God." Thus when a certain wise man saith "It is by the Lord that a man is matched with a woman" (Prov. 19.14), he means this: God made marriage, and not that it is He that joineth together every man that cometh to be with a woman."{17} Whence it is clear that though authority legitimately held and used is to be recognized as coming from God the relation between the ruler and ruled is an established one founded on free agreement similar to the free contract in marriage.
Not only was the natural law as thus more clearly conceived, to constitute certain definite and essential limitations to the power of government, but this very clearness, obviating as it did any further pantheistic interpretation such as that of the Stoics and the Roman Jurists, made it possible henceforth to distinguish between what was due in consequence of the nature and essential relations of things, and what was open to the free determination of man within such manifest bounds of the natural order. Writing of the use among the ancients of the terms natural law and law of nations, Viscount Bryce, though unable himself to assign the reason for the fact which he notes, very truly observes that "the (Roman) jurists use the two terms as practically synonymous, though generally employing ius naturae or naturalis ratio when they wish to lay stress on the motive or ground of a rule; ius gentium when they are thinking of it in its practical application."{18} This confusion was due to the Stoics' pantheistic conception of reason as identified with the force behind nature which, for them, accounted for the order of the universe. Natural law was thus a sort of vis a tergo or instinct common to man and beasts, and the similarity in the laws of various peoples was explained as no more than a manifestation of the same instinct. But being peculiar to the nations as distinguished from animals such laws as were found to be alike, were held to constitute the ius gentium or law of nations.{19} But with Christianity's insistence on the freedom of the human will and especially after the great Christologica1 controversies had brought to light the true nature of personality and the consequent dignity of the individual, this confusion could no longer subsist unchallenged. Lactantius and Ambrose especially had much to say regarding the ignorance of Pagan writers concerning the natural law. The distinction between the due order and an order established by human agreement is clearly made by St. Augustin.{20} In Isidore of Seville moreover we have the first explicit instance of a definite recognition of a real difference between natural law and the law of nations. The natural law is now no longer seen as in instinct but as "had by an instinct" or natural inclination of reason to detect what is "in accord with natural equity."{21} While the ius gentium is henceforth classed in the category of positive human law: that is, it is held to be expressive of a free agreement among men made manifest through customary usage.{22} But what is of chief importance to our question, national customs, as a result of all this, take on a new significance. Not only are they held to constitute law in the narrower sense of law, i. e., law for the people; but, as a product of popular usage and consequently an expression of the people's will, they function as a rudimentary form of constitutional law and are considered as limiting and defining the terms of the agreement between the ruler and his subjects. As we saw already in the words of the Forum Judicum, law "must be according to the nature of things and the customs of the State." In other words the King may make laws, but none that conflict with established custom, since, as Isidore of Scyille said: "Custom is a kind of right established by practice" and, "law is something established by the people."{23}
Besides all this there was the ulterior and more fundamental question of justice. A. F. Pollard in a recent work, The Evolution of Parliament, speaking of the motive for frequent parliaments in the Middle Ages, makes the interesting statement that "if they (English subjects) desired parliaments at all, it was for the justice therein dispensed, and not for the taxation therein imposed."{24} And another late writer, dealing with the question of government, says of the Scholastic doctrine very truly: "In the word justice we get the key to the whole Scholastic system. . . . The essential conception is that of justice; and it is in order to prove that justice must preside over all political relations that the schoolmen appeal to a pact (usually implicit only) between the rulers and the ruled."{25}
But before such practical and theoretic developments as Parliament and the Scholastic teaching on government could take place, that revolution in the very notion of justice had first to be effected which was brought about in earlier times by the spread of Christianity. Lactantius in the fourth century had pointed out what was radically defective in the ancient Pagan conception when he said: "It is very easy to shake justice, having no roots, inasmuch as there was then none on earth, that its nature or qualities might be perceived by philosophers. And I could wish that men so many and of such a character had possessed knowledge also in proportion to their eloquence and spirit, for completing the defence of this great virtue, which has its origin in religion, its principles in equity.
If, therefore, it is piety to know God, and the sum of this knowledge is to worship Him, it is plain that he is ignorant of justice who does not possess the knowledge of God. For how can he know justice, who is ignorant of the source from which it arises? . . . The other part of justice . . . is equity, and it is plain that I am not speaking of the equity of judging well, though this also is praiseworthy in a just man, but of making himself equal to others which Cicero calls equability. For God, who produces and gives breath to men, willed that all should be equal, that is, equally matched. . . . In His sight no one is a slave, no one a master, for if all have the same Father, by an equal right we are all children. Therefore neither the Romans nor the Greeks could possess justice, because they had men differing from one another by many degrees, from the poor to the rich, from the humble to the powerful, in short, from private persons to the highest authorities of Kings. For where all are not equally matched, there is no equity, and inequality of itself excludes justice, the whole force of which consists in this, that it makes those equal who have by an equal lot arrived at the condition of this life."{26} In this Lactantius is not professing himself a Leveller as is clear from what follows in the context. His argument is that the ancients admitted no such thing as what we now know as inalienable rights to which every individual has an absolute claim by the mere fact of his being a man. Both Christian and Pagan could define justice as that habit of mind which renders his own to every man. But they would differ in their comprehension of the term "his own." In the Pagan conception, not only were all rights considered as granted and defined by the State, but that which granted could also withdraw or modify such rights at will; that is, the individual who happened to be a citizen, might rest assured of certain determined barriers against the arbitrary dealings of his neighbor, but he had no rights against the State; which in its own action and in its definition of rights remained unchecked by any consideration of natural rights. The Christian, on the other hand, knowing that man has duties transcending those he owes to society and the State, realized that he has rights, both in regard to the question of their fulfilment, and in regard to the necessary the State, realized that he has rights, both in regard to the means which the State is bound in law and equity to respect and protect.
Corresponding to this difference between the Christian and the Pagan idea of justice was the correlative difference between the Medieval and ancient conception of liberty. Neither the Medieval or Pagan mind could have made anything out of the modern moon-grasping notions that originated in the Reformation. For both considered liberty to consist in the security of rights definitely known and recognized. But whereas the Pagan only thought of insisting on such liberty as was conceded him, the man of the Middle Ages judged the action of government and all its regulations in the light of such limitations as the natural law imposed. Hence the Medieval distinction between liberty and liberties,{27} the one due in consequence of natural rights, the other the result of grants, agreements and judicial decisions in the past. Equity provided for both, for as the unknown author of the Fragmentum Pragense expressed it, equity is that fair arrangement of all things which demands equal rights under the same conditions. Thus God is called equity for the reason that he so wills; for equity is nothing else but God. This temper when considered as permanently residing in man's will is called justice, and this will, when made mandatory, either by written precept or custom, is called law."{28} Moreover as the relation between ruler and ruled was held to be based on a contract, the terms of which were limited and defined by such customs and laws as owed their origin to past grants, decisions or agreements, it followed that the King could no more abrogate any of the liberties of his people than could an individual subject, unless it were by mutual consent.
Such then was the origin of the theory of government of which J. Q. Adams said, "had been working itself into the mind of man for many ages." In the development that ensued, the work is again that of the Church. In Maitland's words: "It is by 'popish clergymen' that our English common-law is converted from a rude mass of customs into an articulate system, and when the 'popish clergymen' yielding at length to the Pope's commands, no longer sit as the principal justices of the King's court, the creative age of our Medieval law is over."{29} And again: "English law, more especially English law of civil procedure, was rationalized under the influence of the Canon law."{30} In the twelfth century Ivo of Chartres in his handbook of Canon law repeats the definition of Isidore of Seville that "Law should be honesta,{31} just, possible, according to nature, conformed to the customs of the country, suitable to place and time, necessary, useful, clear, also, so as not to contain anything which by its obscurity might lead to wariness, it should be devised for the common good of all the citizens and not for the private interests only of some individual."{32} Treating of the question as to whether custom can obtain the force of law, St. Thomas said in the thirteenth century: "The people among whom a custom is introduced may be of two conditions. If they are free and able to make their own laws, the consent of the whole people expressed by a custom counts far more in favor of a particular observance than does the authority of the sovereign who has not the power to frame laws, except as representing the people. Wherefore although each individual cannot make lows, yet the whole people can. If, however, the people have not the free power to make their own laws or to abolish a law made by a higher authority; nevertheless with such a people a prevailing custom obtains the force of law, in so far as it is tolerated by those to whom it belongs to make laws for the people; because by the very fact that they tolerated it, they seem to approve of that which is introduced by custom."{33} Concerning the power of Kings and the various ways of settling with a tyrannous ruler, St. Thomas again adds definiteness to the older tradition. In his De Regimine Principum he says: If any people has the right to provide a ruler for itself, it will not be acting unjustly if it strip him of his authority or place a check on his power, when he abuses it tyrannically. Nor should such a people be thought unfaithful in deposing the tyrant even should it have previously subjected itself to him forever. For inasmuch as he carries on the government of the people without the fidelity which his office requires, he himself deserves that the pact should not be kept 'by his subjects."{34}
By this time, however, an opposite theory had started up. In the struggle between Gregory VII and Henry IV of Germany, those who sided with the King sought what semblance of a justification they could find for their cause in false and lying reports about the Pope. Later when Frederick Barbarossa was asked from whom he held his imperial dignity he answered: "From God alone by the choice of the princes." This was a formal denial of its true historical origin. But to support the claim, he and his successors began to appeal to principles in Roman law diametrically opposed to those upon which Medieval civilization was founded. This appeal to Pagan principles and the strife of argument and of wars which it engendered in the great contest between the Papacy and the Empire, soon began to react on the consciences of men. Already in Dante's Monarchia we find all thought of liberty sacrificed in the attempt to solve the problem of order. As a necessary consequence it becomes less and less a matter of striving for such an order as reason might demand. Craft and will-force, from a means in actual use, gradually came to be defended as the only means in practical theory. The Vision and Creed of Piers Ploughman, written in England sometime around the end of the fourteenth century, might properly be called a lament for the disrupted state of men's consciences in consequence of the corruption of justice by those in power. In the next century Philippe de Commines gives, in his Memoirs, a description of the tyranny that prevailed in France in his day, and sees no hope but in the thought, "that there is a necessity that every prince or great lord should have an adversary to restrain and keep him in humility and fear, or else there would be no living under them, nor near them."{35} Finally Machiavelli, with his idea of the State as an end in itself, sacrifices all to mere efficiency, so that Jean Bodin's "modern" working definition of sovereignty, as the "supreme power over citizens and subjects, unrestrained by laws,"{36} was alone needed for the complete revival of the old Pagan idea of government.
But this was not to remain unchallenged. The sound Christian tradition persisted not only in the schools but even in the minds of the people. Not so very long before Richard II's accession to the throne, the author of Piers Ploughman, whose orthodoxy has been unjustly questioned by those ignorant of Catholic belief, beholding the royal cortege supposedly in vision says:
Thanne kam a King
Knighthood hym ladde.
Might of the communes
Made hym to regne.
Philippe de Commines in the Memoirs already referred to declared: "there is no prince who can raise money any other way (than by free consent of his people) unless it be by tyranny, and contrary to the laws of the Church; but many are so stupid as not to know what rights they have in this respect."{37} In the lifetime of de Commines and at the States General held at Tours in 1484, the year after Luther's birth, Philippe Pot, Seigneur de la Roche, deputy for the nobility of Burgundy, stood out boldly against Guillaume de Rochfort, chancellor of France, when the latter insisted that obedience was the first duty of the French subject. "As history relates," Philippe Pot said, "and as I learned from my forefathers, in the beginning the sovereign people instituted Kings by election and it gave special preference to those men who surpassed others in virtue and ability. . . . I would have you admit that the State is something that pertains to the people who have entrusted it to Kings and that those who have held it by force or otherwise, without any consent of the people, are deemed tyrants and usurpers of that which belongs to others."{38} And again: "When the King is incapable of governing, the right to determine the course of affairs evidently should return, not to some prince nor to a council of princes, but to the people, the donors of this power. The people have not the right to rule, but they have the right to administer the affairs of the nation through those whom they have freely elected. I mean by the people not only the common people and serfs, but the men of every class, so that under the name of States General I include even the princes and exclude none who reside within the realm."{39}
With the Scholastic revival of the sixteenth and seventeenth century this Medieval Christian tradition was supplied anew with the theoretic justification which the outstanding problems created by the Reformation and the Renaissance demanded. In the cause of liberty the two great protagonists were Bellarmine and Suarez, the one an Italian, the other a Spaniard, but both Jesuits and both ably supported by a large number among their brethren who followed their lead. What Lecky has stated in regard to Jesuits in those days may be taken as a somewhat enlightening admission, if proper allowance be made for some exaggeration and for a number of inaccuracies that still pass as common currency. He says: "The marvellous flexibility of intellect and the profound knowledge of the world that then, at least, characterized their order, soon convinced them that the exigencies of the conflict were not to be met by following the old precedents of the Fathers, and that it was necessary to restrict in every way the overgrown power of the sovereigns. They saw, what no others in the Catholic Church seem to have perceived, that a great future was in store for the people, and they labored with a zeal that will secure th everlasting honor, to hasten and direct the emancipation. By a system of the boldest casuistry, by a fearless use of their private judgment in all matters which the Church had not strictly defined, and above all by a skilful employment and expansion of some of the maxims of the schoolmen, they succeeded in disentangling themselves from the traditions of the past, and in giving an impulse to liberalism wherever their influence extended."{40}
The problem with which the Jesuits had to contend differed, of course, entirely from the one with which the Fathers had had to deal. We have seen, moreover, what the origin of tbat non-Medieval false tradition was from which they had to disentangle themselves. Beginning with the revival of Roman law in its old-time Pagan unassimilated form, this had developed into Machiavellian, state absolutism. But in the process, especially in France, it had found itself obliged to assume sheep's clothing. For there was always the Pope to be reckoned with. After Philip the Fair's attack on Boniface VIII, William of Occam and Marsiglio of Padua began to misapply the Medieval political theory to the constitution of the Church with the purpose of undermining Papal influence.{41} And from their writings it was that, amidst the confusion created by the Schism of the West, the theory of national churches evolved which should leave the Pope little beyond the right to deliver pious exhortations. In its first applied form this theory was known as the Gallican Liberties, and, in the minds of those who advocated it under this misnomer, it resolved itself into a blind desire to curtail the direct influence of the Pope for the sake of exalting the King, the symbol of national unity. This might be freedom of a sort for rulers, it certainly contributed nothing to the rightful liberty of the people. But in France the theory was not worked out to its full logical conclusion till the decree was passed, during the French Revolution, for the civil constitution of the clergy.
The first to bring the whole question to definite practical issue was James I of England{42} in his pedantic attempt to defend the deceptive oath of allegiance which he wished to impose on his Catholic subjects, In the controversy that ensued between himself and Bellarmine, the latter confined his attack to the real point in the argument namely, the exact interpretation of the oath and its bearing on the faith of Catholics. But James I, who insisted on filling the world with the splendor of his own learning, sent forth his Premonition To All Most Mightie Monarches, Kings, Free Princes, And States of Christendome, in which he reviews Bellarmine's earlier works and draws up a list of what he would have to be objectionable or dangerous errors. The futility of this becomes apparent when it is recalled that Bellarmine was already the most widely read controversialist of the day, and that chairs of controversy known as Anti-Bellarmine Colleges had been established in the time of Elizabeth at both Oxford and Cambridge with the express purpose of providing answers to these works.{43} But the line of tactics thus adopted by James had the merit of bringing to prominence one portion of Bellarmine's De Controversiis which, except for points gleaned from it by Hooker, in his effort to bring the Puritans back to reason, had, up to this, received little notice in England. This was his treatise De Laicis sive Saecularibus of which he himself speaks as being exiguus libellus or a little booklet and which, it should be very carefully noted, was written with the express intention of confuting the antinomian and anti-social tenets of Wycliffe, Huss, Luther and Calvin. In establishing the legitimacy of government, however, he argued from the old traditional Medieval ground that rulers derive their authority from the consent of the people. This was anathema to James and his Anglican bishops. Not content with an honest effort to deal squarely with the question, he and they began the policy of representing Jesuits as saying things they never uttered. As James stated the doctrine he wished attributed to Bellarmine, it read: "And as for the setting up of the People above their own natural King, he bringeth in that principle of Sedition, that he may thereby prove, that Kings have not their power immediately of God, as the Pope hath his: For every King (saith he) is made and chosen by his people; nay, they doe but so transferre their power in the King's person, as they doe, notwithstanding, retaine their habitual power in their own hands, which upon certaine occasions they may actually take to themselves againe. This, I am sure, is an excellent ground in Divinite for all Rebels and rebellious people, who are hereby allowed to rebell against their Princes; and assume libertie unto themselves, when in their discretions they will thinke it convenient."{44} To this Bellarmine rejoined, in his Apology, with the statement that, had James merely quoted his exact words there would be no need of answering him; that, in the first place, the words "every King is made and chosen by his people" were neither his own nor those of anyone else as far as he knew, and were manifestly false; that, secondly, the opinion that "the people never so transfer their power to the King as not to retain habitual power in their own hands" was not originally his, but the opinion of Navarrus, whom he had quoted, and since the words were those of a noted author and had been read by many in all Christian countries and had been pondered for a long while without calling forth any accusation to the effect that Navarrus had laid the ground for sedition, he did not see why they should now be turned into a source of calumny against himself. Bellarmine then summed up his own opinion in the matter by asserting that: "In the beginning the people were free, either to create a magistracy with defined powers and for a time, as free republics do, or to elect a King with absolute power, and in perpetuity, to whom they had transferred all their own power, as is seen to be the case in hereditary monarchies. But after such a magistracy has been established, whether it be temporary or perpetual, the people have no supreme authority over it, but the magistrate or royal official has the right, above all, to this authority in regard to the people. Nor is one at liberty, without serious crime, to rebel against his legitimate ruler or to stir up sedition and rebellion."{45} In his De Laicis he had given a most lucid exposition of how this must be so from the very nature of things. Moreover, he there made it clear that, given a legitimate reason, the people might change from a monarchical form of government to that of an aristocracy or a democracy.{46} But, except for his doctrine on divided sovereignty, which constitutes Bellarmine's chief contribution to the science of government, he went little beyond a solidly reasoned defense of what was already received in Medieval tradition.
That such was the case should appear, not only from what has been already shown, but also from the fact that, at the time when Bellarmine's De Controversiis was first published, the Catholics of France had for some time been appealing to this very tradition, as embodied in their national institutions, in the effort to avert the succession to the throne of an heretical prince who might rob them of their faith as the English had been robbed of theirs.{47}
And should the claim that this tradition had been an actually living one, seem in need of any further corroboration, this will be found fully supplied, we think, in the following words from Alexander J. Carlyle, whose long years of study devoted to the careful examination and comparison of Medieval writings, apart from all modern gloss and misinterpretation, have made him the best authority thus far on this subject. According to him, "The first principle which seems to me to be behind the whole structure of Medieval society, is this, that political authority is the authority of the whole community. The great representative machinery in which this was finally embodied, represents one of the greatest achievements of civilization, and is a perpetual monument of the practical genius of the Middle Ages. This development would have been impossible, as its appearance would be unintelligible, if its foundations had not been laid deep in the principles of Medieval society and, especially, in the principle that all authority is the authority of the community. This principle is implicit in the two great practical facts of Medieval society, the first, that law is the law of the community, the second, that the administrative organs of the community, if we may use a modern phrase, derive their authority from the consent of the community."{48}
Bellarmine's controversy with James I was soon followed by the publication of Suarez's two works: the Defensio Fidei Catholicae and the De Legibus. The first was an exhaustive refutation of the English King's contentions, and a defense of Bellarmine that furnished the occasion for a much ampler theoretic exposition of the doctrine of consent. Of the second, Paul Janet, in his Histoire de la Science Politique, has very truly said: "He who has read the De Legibus of Suarez knows thoroughly all the ethics, natural law and political science of the Middle Ages."{49} No more monumental work on law and government has yet been written. What is very much to our purpose, it is here that the principle will be found clearly stated for the first time and defended, viz: that, under proper circumstances, the people may retain the supreme power in themselves,{50} and that in such States as "are de facto free and retain the supreme power in themselves, yet commit the problem of passing laws to a senate, or to some leader to act either alone or in conjunction with a senate," such officials "are, perhaps, only delegates," the question depending on a point of fact and not of law.{51}
Now it is this principle, as embodied in our own constitution together with the principle of divided sovereignty, first stated by Bellarmine, that distinguishes our peculiar form of government from that of any other known to history. In his speech, delivered on the 26th of November, 1787, in the Convention of Pennsylvania, James Wilson said: "Oft have I viewed with silent pleasure and admiration the force and prevalence, through the United States, of this principle -- that the supreme power resides in the people; and that they never part with it. It may be called the panacea in polities. There can be no disorder in the community but may here receive a radical cure. If the error be in the legislature, it may be corrected by the constitution, if in the constitution, it may be corrected by the people. There is a remedy, therefore, for every distemper in government, if the people are not wanting to themselves. For a people wanting to themselves there is no remedy; from their power, as we have seen, there is no appeal; to their error, there is no superior principle of correction."{52}
Some few days later, that is on December 1, when it was objected in this same convention that the new system, proposed for ratification, threatened to do away with State sovereiguties, Wilson replied with the declaration that: "When the principle is once settled that the people are the source of authority, the consequence is, that they may take from the subordinate governments powers with which they have hitherto trusted them, and place those powers in the general government, if it is thought that they will be productive of more good. They can distribute one portion of power to the more contracted circle, called State governments; they can also furnish another portion to the Government of the United States."{53}
This was, indeed, a remarkable application of the principle of consent, and, although it presupposes the whole Medieval development that led up to it, G. C. Curtis in his Constitutional History of the United States is almost too laconic in his comment, that it "was undoubtedly a novelty in political science; for no government had yet been constructed in which the individual stood, in the relation of subject, to two distinct sovereignties, each possesed of a distinct sphere and each supreme in its own sphere."{54} For, as he shows elsewhere, Vattel expressed the idea universally held in Europe both then and since, when in Le Droit des Gens he maintained "that every sovereignty, properly so called, is, in its own nature, one and individible." But it is scarcely accurate to claim that in this "the framers of the Constitution of the United States made a great discovery in the science of government."{55} Bellarmine, in his De Summo Pontifice, had previously explained how, on the basis of the principle of consent, such a division of sovereignty was not only possible, but most desirable; and, as we shall see, there is every reason to believe that at least Madison and Wilson were acquainted with Bellarmine and Suarez' writings, except for the fact of explicit reference, which, under the circumstances, could scarcely have been prudent. Bellarmine's opinion was that, "Because of the fallen state of human nature, a rule tempered by all three forms (the monarchic, the aristocratic and the democratic), is more useful than a simple monarchy. But this mixed form evidently requires that there should be in the commonwealth one supreme ruler who, while issuing commands to all, should himself be subject to none. Those, on the other hand, who preside over the provinces and cities should not be vicegerents of the King or mere annual judges, but let them be real rulers, subject in obedience to the supreme ruler, yet in such a manner as at all times to hold the regulation of their respective provinces or cities to be a matter of concern to themselves and not the concern of another. Thus the commonwealth would enjoy the benefits both of a monarchy under a King and of an aristocracy under a select body of rulers.
"If in addition to this it were provided that neither the supreme ruler nor those who ruled under him should attain to such positions of dignity by hereditary succession but that those best fitted should be selected from the body of the people and elevated to them, the commonwealth would then possess some of the attributes of a democracy. That this is the best form of government and the one most to be desired in this mortal life, we shall establish by two arguments.
"In the first place such a government would have all the good qualities which have been previously shown to exist in a monarchy but would also be more acceptable and advantageous in this life. As to the good qualities of a monarchy, it is clear that in our proposed plan of government they would be found included, since such a government comprises an element of monarchy in the true and proper sense of the word. That it would be more acceptable to all is evident from the fact that everyone prefers that form of government in which he himself can take a part, which is undoubtedly possible in this case, since it is the worth of a man and not his lineage that will be taken into consideration.
"With regard to the advantages of such a system there is scarcely need of insistence, as it is clear that one man cannot by himself rule over the separate provinces and cities, but, whether he be willing or not, he will be forced to entrust the administration of them either to attendants acting as his vicegerent, or to their own respective rulers; while, on the other hand, it is equally certain that such rulers will show much greater care in what they know to be their own concern than when acting as the vicarious agent of another."{56}
This shows how much prejudice there is in the contention of G. P. Gooch that the Jesuits were, at once, pure indifferentists and acute opportunists who caught up the first weapons that and came to hand;{57} and also how much nearer the truth Lecky in his estimate when he said: "It would be a mistake to suppose that the Jesuits advocated liberal principles only with a view to theological advantages, or in Protestant countries, or under the shelter of ecclesiastical authorities. More than once they maintained even their most extreme forms in the midst of Catholic nations, and, strange as the assertion may appear, it is in this order that we find some of the most rationalistic intellects of the age."{58} This last assertion, to be sure, implied, in Lecky's mind, that to do what they did, they had to wrest dogmatic tenets into conformity with natural religion, and it based on the persistent Protestant assumption that reason and Christian dogma must somehow contradict one another. But the half-truth which the assertion contains; that is, the sort of rationalism of which the Jesuits were guilty, as well as the nature of the service they rendered to the cause of liberty in their own day, may be considered as fully described in the following words from Burke: "Reason" said he "is never inconvenient but when it comes to be applied. Mere general truths interfere very little with the passions. They can, until they are roused by a troublesome application, rest in great tranquillity side by side, with tempers and proceedings the most directly opposite to them. Men want to be reminded who do not want to be taught: because those original ideas of rectitude to which the mind is compelled to assent when they are proposed, are not always as present to it as they ought to be. When people are gone, if not into a denial, at least into a sort of oblivion of those ideas; when they know them only as barren speculations, and not as practical motives for conduct, it will be proper to press, as well as to offer them to the understanding; and when one is attacked by prejudices which aim to intrude themselves into the place of law, what is left for us but to vouch and call to warranty those principles of original justice from whence alone our title to everything valuable in society is derived?"{59}
In the interval between the beginning of the controversy of James I with Bellarmine and the appearance of the Defensio Fidei Catholicae and the De Legibus of Suarez, the King suddenly found himself opposed from an entirely different quarter, but in a manner which was to prove to many, in England at least, the practical value of the Jesuit Doctrines on Government. This new opposition was started by the great and learned, if rather crabbed old lawyer, Sir Edward Coke, of whom G. P. Gooch very justly says: "If he did not aid his countrymen to conquer new liberties, he did more than any other man to secure that they should preserve unimpaired such as they already possessed."{60} In the endeavor to carry into effect the notion that be was entitled to rule England as an absolute sovereign, James attempted to make use of the Court of High Commission, established at the accession of Elizabeth, for cases of an ecclesiastical nature. As this was governed by no fixed rules and decided without appeal, the King hoped he might bring all persons, lay and spiritual, under its jurisdiction. To the means suggested, Coke, as Lord Chief Justice, made answer that the practice was contrary to Magna Charta. Whereupon, the High Commission being silenced, Archbishop Bancroft proposed that recourse should be had to the notorious measure of "the King judging whatever cause he pleased in his own person, free from all risk of prohibition and appeal." Coke again resisted and, when the King in a rage declared it treason to affirm that he was in any way under the law, Coke merely replied in the words of a thirteenth century cleric and lawyer by saying: "Thus wrote Bracton; 'Rex non debet esse sub homine, sed sub Deo et Lege. He then went on reminding the King that he "cannot without parliament, change any part of the common law nor create any offense by his proclamation which was not an offense before" and again that "the law of England is divided into three parts: common law, statute law, and custom; but the King's proclamation is none of them."
In the next reign, as is well known, Charles I strove to carry out his father's principles. This led to the stiff conflict between himself and parliament that resulted in rebellion. And here again Coke was the soul of the opposition and its energizing motive force. Finding himself without supplies, the King resolved to summon the great council of the nation; Coke, though quite ready to advocate a generous grant of money, was determined that before it came to this there should be an effectual redress of grievances. He thereupon framed the famous Petition of Right which stands out in English history as a second Magna Charta. In spite of much reluctance and opposition, Coke succeeded, almost single handed, in getting the bill passed. On its return from the Lords, however, it was found that the proviso had been appended "that nothing therein contained should be construed to entrench on the sovereign power of the Crown." Then it was that Sir Edward Coke made his momentous speech that decided the fate of modern liberty. Said he: "This is magnum in parvo. It is a matter of great weight and to speak plainly, it will overthrow all our Petitions; it trenches on all parts of it; it flies at loans, at imprisonment, and at billeting of soldiers. This turns all about again. Look into all the petitions of former times; the assenting answer to them never contained a saving of the King's sovereignty. I know that prerogative is part of the law, but 'sovereign power' is no parliamentary word. In my opinion, it weakens Magna Charta and all the statutes whereon we rely for the declaration of our liberties; for they are also absolute without any saving of 'sovereign power.' Should we now add it, we shall weaken the foundation of the law, and then the building must fall. If we grant this by implication, we give a 'sovereign power' above all laws. 'Power' in law is taken for a power with force: the sheriff shall take the power of the county. What it means here, God only knows. It is repugnant to our Petition. This is a Petition of Right granted on acts of parliament, and the laws which we were born to enjoy. Our ancestors could never endure a salvo jure suo from Kings -- no more than our Kings of old could endure from churchmen like Bancroft, etc.? salvo honore Dei et Ecclesiae. We must not admit it, and to qualify it is impossible. Let us hold our privileges according to law. That power which is above the law, is not fit for the King to ask or the people to yield. Sooner would I have the prerogative abused and myself to lye under it; for though I should suffer, a time would come for the deliverance of the country."
It was thus that Sir Edward Coke effectively reminded the English people of their ancient Medieval tradition of liberties at a time when they were in most imminent danger of losing it, in the same way as the French and other continental nations lost theirs. But the work was only half done. There yet remained the urgent necessity that some, in the words of Burke, should "vouch and call to warranty those principles of original justice from whence alone our title to everything valuable in society is derived." Coke himself attempted something of the sort when in his Reports of Cases he laid it down as a principle "that the common law shall control acts of parliament and sometimes shall adjudge them to be merely void; for where an act of parliament is against common right and reason, the common law shall control it and adjudge it to be void." But through the machinations of Bacon, Coke's counterpart in meanness and the originator of modern Kitchen Philosophies, this was used as a pretext for dismissing the Lord Chief Justice from the King's Bench.{61} Nor has the doctrine of the inalienable rights of the individual ever yet been readmitted into the English constitution. As A. F. Pollard says: "The growth of positive law the expense of divine and natural law, and the idea that human will and mundane counsels could amend the foundations of society, is the beginning of the sovereignty of parliament." Though a statement of real fact, this is also illustrative of that intellectual sclerosis from which the English historical, philosophical, and legal mind has suffered so much in consequence of the influence of Bacon, Hobbes, Locke, Hume, Bentham and Austin. Professor Pollard has merely taken Austin's word for what the "divine and natural law" are, and the bias this has caused in his own interpretation of history may be gauged from the very next sentence where he solemnly announces that, "without that overriding sovereignty (of parliament) to limit and abolish them English medieval liberties would have petrified society on a mould of local and class particularism, and have produced that kind of ossification which stereotyped oriental communities, and even reduced France to the necessity of bursting its social shell for the sake of expansion."{62} But in the name of what, pray, was this last effected? The Declaration of the Rights of Man, however wild and erroneous, certainly came much nearer being an appeal to "divine and natural law" then an abject surrender to an "omnicompetent" English debating society placed above all laws by merely labelling it with the antiquarian name of Parliament. Fortunately for us, however, there were some in England in the days of James I and for many years after, who read up the controversy between the Scottish King and his Jesuit antagonists and learned to know better than either John Austin or Jean Jacques Rousseau. These were the Whigs.
John Millar, who was teaching law at the University of Glasgow at the time when James Wilson emigrated to the colonies, and who may be taken as a spokesmen for the Whigs in the time of Burke and of our providential severance from England, gives, in brief outline, an account of the nature and origin of the fundamental doctrines in the Whig philosophy of government. In an essay on the Progress of Science Relative to Law and Government he says: "There are natural rights, which belong to mankind antecedent to the formation of civil society. We may easily conceive note that this is not the same as Locke's and Rousseau's unhistorical assumption of fact, that, in a state of nature, we should be entitled to maintain our personal safety, to exercise our natural liberty, so far as it does not encroach upon the rights of others; and even to maintain a property in those things which we have come to possess, by original occupancy, or by our labor in producing them. These rights are not lost, though they may be differently modified when we enter society. A part of them, doubtless, must be resigned for the sake of those advantages to be derived from the social state. We must resign, for example, the privilege of avenging injuries, for the advantage of being protected by courts of justice. We must give up a part of our property, that the public may be enabled to afford that protection. We must yield obedience to the legislative power, that we may enjoy that good order and tranquillity to be expected from its cool and dispassionate regulations. But the rights which we resign ought in all these cases, to be compensated by the advantages obtained; and the restraints, or burdens imposed, ought neither to be greater, nor more numerous, than are necessary for the general welfare and happiness.
"In England, where the attention of the inhabitants has been long directed to speculations of this nature, the two original principles of the government . . . . were distinguished by political writers as far back, at least, as the commencement of the contest between the King and the people, upon the accession of the House Stewart, and were then respectively patronized and adopted by the two great parties into which the nation was divided. The principle of authority was that of the tories; by which they endeavored to justify the pretensions of the sovereign to absolute power. As the dignity of the monarch excited universal respect and reverence and as it was not conferred by election, but had been immemorially possessed by a hereditary title, it was understood to be derived from the author of our nature who has implanted in mankind the seeds of loyalty and allegiance. The monarch is therefore, not accountable to his subjects, but only to the Deity, by whom he is appointed; and consequently his power, so far as we are concerned, is absolute, requiring on our part, an unlimited passive obedience. If guilty of tyranny and oppression, he may be called to an account in the next world, for transgressing the laws of his Maker; but in this life, he is totally exempt from all restraint or punishment; and the people, whom heaven in its anger has visited with this affliction have no other resource than prayers and supplications.
"The Whigs, on the other hand, founded the power of a sovereign, and of all inferior magistrates and rulers, upon the principle of utility. They maintained, that as all government is intended for defending the natural rights of mankind, and for promoting the happiness of human society, every exertion of power in governors, inconsistent with that end, is illegal and criminal; and it is the height of absurdity to suppose, that, when an illegal and unwarrantable power is usurped, the people have no right to resist the exercise of it by punishing the usurper. The power of a King is no otherwise of Divine appointment than any other event which happens in the dispositions of Providence; and, in the share of government which is devolved upon him, he is no more the vicegerent of God Almighty than any inferior officer, to whom the smallest or meanest branch of administration is committed.
"At the same time that the Whigs considered the good of society as the foundation of our submission to government, they attempted to modify and confirm that principle by the additional principle of consent. As the union of mankind in society is a matter of choice, the particular form of government introduced into any country depends, in like manner, upon the incination of the inhabitants. According to the general current of popular opinion, they adopt certain political arrangements, and submit to different rulers and magistrates, either by positive regulation and express contracts or by acting in such a manner as gives room to infer a tacit agreement. As government, therefore, arose from a contract, or rather a number of contracts, either expressed or implied, among the different members of society, the terms of submission between the governors and the governed, as well as the right of punishing either party, upon a violation of those original agreements, may thence be easily and clearly ascertained.
"With respect to this origin of the duty of allegiance, which has been much insisted on by the principal writers in this country, and which has of late been dressed and presented in different shapes by politicians on the continent, it seems rather to be a peculiar explanation and view of the former principle of utility, than any new or separate ground of our submission to government; and even, when considered in this light, it must be admitted with such precautions and limitations, that very little advantage is gained by it."{63}
This last was inserted for the evident purpose of taking the wind out of the sails of a set of dissenters in England who had a way of flying in the face of all tradition, and between whom and themelves, the old Whigs ever insisted on making a clear and marked distinction.
Among the earliest to take up the genuine Whig position just described, was Sir Edward Sandys, the leader of the independent party in Parliament, who drew up "With great force of reasoning and Spirit of Liberty" the remonstrance against the conduct of James I towards his first Parliament, and had often appealed for a redress of the grievances of the people, and even "learned to raise his voice for the toleration of those with whom he did not wholly agree."{64} It was he moreover who, when chief officer of the second London company for Virginia, established representative government in that colony. This was in 1619 and, therefore, before the landing of the Puritans. Now Sandys had been educated by Richard Hooker and must have consequently been well versed in the principles of St. Thomas and the earlier scholastics on government; so that, when the controversy arose between King James and the Jesuits, his mind was particularly prepared to grasp the practical bearing of the much discussed Jesuit doctrines of the problem of liberty, which he and his circle of friends were trying to unravel. As one of this circle, stood that other great figure, John Selden, whose opinions, because of his writings, are more explicitly known. In his Table-talk we have his views as formed largely within the shadow of the great Puritan upheaval, yet offering a striking contrast to those of Milton; a fact which in itself would justify the statement of G. P. Gooch that "the first Whig was not Shaftesbury, but Selden."{65}
Confining ourselves to the points touching on government we find the following among Selden's reported utterances: "If our Fathers have lost their Liberty, why may not we labor to regain it? Answ. We must look to the Contract; if that be rightly made we must stand to it; if we once grant we may recede from Contracts upon any inconveniency that may afterwards happen, we shall have no Bargain Kept." "A King is a thing Men have made for their own Sakes, for quietness' sake." "Kings are all individuals, this or that King; there is no species of Kings. A King that claims Privileges in his own Country, because they have them in another, is just as a cook, that claims fees in one Lord's House, because they are allowed in another. If the Master of the House will yield them, well and good." "There is not anything in the World more abused than this sentence, Salus populi suprema Lex esto; for we apply it, as if we ought to forsake the known Law, when it may be most for the advantage of the People, when it means no such thing . . . . (But) in all the Laws you make, have a special Eye to the Good of the People." "Objection He that makes one, is greater than he that is made; the People make the King ergo. Answer. . . . The answer to all these Doubts is, Have you agreed so? if you have, then it must remain till you have altered it." "When the Schoolmen talk of Recta Ratio in Morals, either they understand Reason as it is governed by a Command from above, or else they say no more than a Woman, when she says a thing is so, because it is so; that is, her Reason persuades her 'tis so. The other Acception has sense in it."
"I cannot fancy to myself what the Law of Nature means, but the Law of God. How should I know I ought not to steal, I ought not to commit Adultery, unless somebody had told me so? Surely 'tis because I have been told so! 'Tis not because I think I ought not to do them, nor because you think I ought not; if so, our minds might change; whence then comes the restraint? From a higher Power; nothing else can bind. I cannot bind myself, for I may untie myself again; nor an equal cannot bind me, for we may untie one another; it must be a superior, even God Almighty. If two of us make a Bargain, why should either of us stand to it? What need you care what you say, or what need I care what I say? Certainly because there is something about me that tells me Fides est servanda; and if we after alter our Minds and make a new Bargain, there's Fides servanda there too." "Most Men's Learning is nothing but History dully taken up. If I quote Thomas Aquinas for some Tenet, and believe it, because the Schoolmen say so, that is but History. Few men make themselves masters of the things they write or speak. The Jesuits and the Lawyers of France, and the Low-countrymen, have engrossed all learning. The rest of the world make nothing but Homilies."
During the Puritan Revolution, Protestantism had its one best chance to show what it could do towards creating a social order. Yet the result should have surprised those only who were blind to its essential antinomianism. With the return of the Stuarts the outstanding problem was precisely that of healing those wounds which, in the words of the Declaration of Breda, had for "so many years together been kept bleeding." The reaction was naturally towards absolutism in government. But happily for the cause of liberty Hobbes appeared with his theory of ethics and politics. "The foundation whereof," as Cudworth said, "is first laid in the villanizing of human nature; as that, which has not so much as any the least seeds either of politicalness or ethicalness at all in it; nothing of equity and philanthrophy . . . nothing of public and common concern, but all private and selfish." This was no more than what Machiavelli, Luther and Calvin had maintained. But in the light of recent experience this villainizing of human nature was seen to shake the very foundations of all morality. Refutations abounded and for a century or more Hobbes' influence may be traced in the efforts, often one-sided and indirect, to undermine his position, In the beginning we find men such as Cumberland, Cudworth and Clarke taking something of the high ground of Medieval scholastic thought which was still being studied in the universities. Thus Hobbes' contention was "that sovereignty is essentially infinite and therefore altogether inconsistent with religion, that would limit and confine it," and that "conscience, which religion introduceth, is private judgment of good and evil, just and unjust, and therefore altogether inconsistent with true politics; that can admit of no private conscience, but only one public conscience of the law." To this Cudworth replied that "authority of commanding is such a right, as supposes obligation in others to obey, without which it could be nothing but mere will and force. But none can be obliged in duty to obey, but by natural justice; commands, as such, not creating obligation but presupposing it. For if persons were not before obliged to obey, no commands would signify anything to them. Wherefore, the first original obligation is not from will, but nature" . . . and again "Nor, indeed, can this private judgment of men, according to their appetite and utility, be possibly otherwise taken away, than by natural justice, which is a thing, not of a private, but of a public and common nature; and by conscience, that obligeth to obey all the lawful commands of civil sovereigns, though contrary to men's appetites and private interest. Wherefore conscience also, is in itself, not of a private and partial, but of a public and common nature; it respecting Divine laws, impartial justice and equity, and the good of the whole, when clashing with our own selfish good, and private utility. This is the only thing that can naturally consociate mankind together, lay a foundation for bodies politic, and take away that private will and judgment, according to men's appetite and utility, Which is inconsistent with the same. . . . It is true indeed, that particular persons must make a judgment in conscience for themselves (a public conscience being nonsense and ridiculous) and that they may also err therein yet is not the rule neither, by which conscience judgeth, private; not itself unaccountable unless in such mistaken fanatics, as professedly follow private impulses, but either the natural and eternal laws of God, or else his revealed will, things more public than the civil laws of any country, and of which others also may judge. Nevertheless, we deny not, but that evil persons may, and do sometime make a pretence of conscience and religion, in order to sedition and rebellion, as the best things may be abused; but this is not the fault of religion, but only of the men conscience obliging, though first to obey God, yet, in subordination to him the laws of civil sovereigns also."
These words appear at the very end of a perfect wilderness of ill assorted bits of erudition that form the contents of the author's noted work, The True Intellectual System of the Universe.{66} Yet they clearly show how far back thought had traveled from the position taken up by Milton,{67} or by that genial old Puritan, John Winthrop, when in his Arbitary Government Described he made the assertion, "that the officers of this body politic have a rule to walk by in all their administrations, which rule is the Word of God, and such conclusions and deductions as are, or shall be, regularly drawn from thence." What is more, we know that Hamilton must have read the above passages, since a pay-book kept by him in 1776 and interspersed with notes and reflections upon political philosophy, contains a list of books, and among others such as "Hobbes' Dialogues" and "Cicero's Morals," there also occurs "Cudworth's Intellectual System."{68}
The note thus struck by Cudworth becomes dominant in the thought of the times and is perceived clearly in the poetry even, of Dryden, Cudworth 's contemporary, and later in that of Pope,{69} whose preceptor in philosophy, Bolingbroke, is noted for having been the greatest plagiarist of his age, after Voltaire. the immediate consequence was, that political controversy found itself. If supplied with a much broader and generally recognized ethical basis for argument With the Puritans' and dissenters, generally, reduced to live on meagre sufferance under the oppressive shadow of the Established Church, the Whigs were now freer to take up the contest against the defenders of the Divine Right of Kings on the ground of civil liberty alone. Nor were the Jesuits and their doctrines left out of account in this new development towards recovering what the Reformation had ruined. In the preface of his Religio Laici Dryden, a decided Tory, testifies to the fact that the Jesuits were still being widely read. Contrasting the danger that threatened from Papists and Fanatics, he admits that he thinks the former "the least dangerous, at least in appearance, to our present state" but then he goes on to raise the old bogy by asking: "how can we be sure from the practice of Jesuited Papists in that the Catholic religion? For not two or three of that order, as some of them would impose upon us, but almost the whole body of them, are of opinion, that their infallible master has a right over Kings not only in spirituals but temporals. Not to name Mariana, Bellarmine, Emanuel Sa, Molina, Santarel, Simancha, and at least twenty others of foreign countries; we can produce of our own nation, Campion, and Doleman or Parsons, besides many others are named whom I have not read, who all of them attest this doctrine."{70} Sir Thomas Brown testifies to the same fact in his Religio Medici where he refers to Suarez and quotes Bellarmine as if their works were the subject of common study.{71} The Tories, moreover, used as their chief argument against the Whigs, the evident fact that the latters' principles were derived from the Jesuits. Dryden, for instance, in the postscript to his translation of the History of ihe League by Maimbourg, (undertaken in order "to increase the unpopularity of the Whigs, by ascribing to the association which Shaftesbury had proposed the same motives and principles which actuated the members of the League,") held Bellarmine up to execration, for maintaining that, "in the kingdoms of men, the power of the king is from the people, because the people make the king." While Sir Robert Filmer, in his Patriarcha or the Natural Power of Kings, saw no better way of exposing the villainous doctrines of those who contested the divine right of Kings, than by a brief yet exact summary of the chapter in Bellarmine's De Laicis, to which James I had himself objected. This summary of Filmer's reads: "To make evident the grounds of this question about the Natural Liberty of Mankind, I will lay down some passages of Cardinal Bellarmine that may best unfold the state of this controversie. Secular or civil power (saith he) is instituted by men; it is in the people, unless they bestow it on a Prince. This power is immediately in the whole multitude, as in the subject of it; for this power is in the Divine Law, but the Divine Law hath given this power to no particular man. If the Positive Law be taken away there is left no reason why amongst a multitude (who are equal) one rather than another should bear rule over the rest. Power is given by the multitude to one man, or to more, by the same law of nature; for the commonwealth cannot exercise this power, therefore, it is bound to bestow it upon some one man or some few. It depends upon the consent of the multitude to ordain over themselves a king, counsel or other magistrates; and, if there be a lawful cause, the multitude may change the kingdom into an aristocracy or democracy. Thus far Bellarmine; in which passages are comprised. the strength of all that I have read or heard produced for the natural liberty of the subject."{72}
This challenge, the Whigs could scarcely ignore and the two most notable contributions from their side of the controversy: Sidney's Discourses Concerning Government, and Locke's Two Treatises on Government, had the twofold purpose of refuting the Tories' theory as expounded by Filmer, and of justifying the doctrines which Filmer attributed to Bellarmine. Concerning school-divines, whom Filmer included in one general condemnation, Sidney answered: "Though the schoolmen were corrupt, they were neither stupid nor unlearned. They could not but see that which all men saw, nor lay more approved foundations than that 'man is naturally free'; that he cannot justly be deprived of that liberty without cause; and that he doth not resign it or any part of it, unless it be in consideration of a greater good, which he proposes to himself." A commendation, the first part of which, tallies closely with what Grotius had said in his De Jure Belli et Pacis in justification of his own use of the scholastics: "Whenever," says Grotius, "they" (the scholastics) "are found to agree on moral questions they can scarcely be wrong -- they who are so wonderfully keen in discovering the flaws in others' arguments. Yet even in their zealous defence of an opposite doctrine they furnish a most praiseworthy example of modesty. For reasons are their weapons against each other, not personal insult -- that spawn of barren minds -- a usage which has lately begun shamefully to dishonor letters."{73}
With regard to Bellarmine and Suarez, however, Sidney was more explicit. To the former he refers seven times, and to the latter twice, in the first hundred and twenty-eight pages. The most notable of these passages is that dealing directly with the doctrines as given above by Filmer, where Sidney says: "I do not find any great matters in the passages taken out of Bellarmin, which our author says 'comprehend the strength of all that he had ever heard, read, or seen produced for the natural liberty of the subject.' But as he has not told us where they are to be found, I do not think myself obliged to examine all his works, to see whether they are rightly cited or not. However, there is certainly nothing new in them. We see the same as to the substance, in those who wrote many ages before him, as well as in many that have lived since his time, who neither minded him, nor what he had written. I dare not take upon me to give an account of his works having read few of them (sic){74} but as he seems to have laid the foundation of his discourses in such common notions as were assented to by all mankind, those who follow the same method have no more regard to Jesuitism and Popery, though he was a Jesuite and a cardinal than they who agree with Faber and other Jesuits in the principles of Geometry, which no sober man ever denied."{75}
Algernon Sidney wrote in the days when James II, ambitious to emulate the Gallican practices of Louis XIV, stood out, even against the Pope,{76} in his efforts to free himself from the trammels of the constitution. The injustice of Sidney's trial and death caused him to be considered by the Whigs as a martyr for liberty, very much in the same way as the Tories looked upon Charles I as a martyr for the divine right of kings.
Locke, on the other hand, wrote his Two Treatises in Justification of the Revolution of 1688. In these, no explicit mention is made of the scholastics or their writings, yet references to Hooker are frequent and the work itself is even more of a direct attempt than Sidney's, to enlarge upon Filmer's synopsis of Bellarmine. As Sir James MacKintosh has said: "Mr. Locke's general principles of government were adopted by him, probably without much examination, as the doctrine which had for ages prevailed in the schools of Europe, and which afforded an obvious and adequate justification of a resistence to oppression. He delivers them as he found them, without even appearing to have made them his own by new modifications. The opinion that the right of the magistrate to obedience, is founded in the original delegation of power by the people to the government, is at least as old as the writings of St. Thomas, and, in the beginning of the seventeenth century, it was regarded as the common doctrine of all the divines, jurists and philosophers who had at that time examined the moral foundation of political authority."{77}
In the light of what we have seen this statement is no more than a plain statement of fact, and coincides fully with the assertion of J. Q. Adams, that the theory of "consent," as embodied in our Declaration of Independence and our Constitution, "had been working itself into the mind of man for many ages." But with regards to Sidney and Locke, this should be noted. Neither were real thinkers, and in their zeal to show the wrong in Toryism, they lost sight of such experience of the past as was embodied in Medieval tradition, and in theory both lean considerably away from the sound principles in Medieval teachings on government. As a result, they furnished grounds for the more superficial radicalism of dissenters like Drs. Price and Priestly, and extremists such as Horne Tooke and Thomas Paine. Nor were the Whigs themselves blind to this fact. Burke declared: "The bane of the Whigs has been the admission among them of the corps of schemers, who in reality and at bottom, mean little more than to indulge themselves with speculations; but who do us infinite mischief by persuading many sober and well-meaning people that we have designs inconsistent with the constitution left us by our forefathers. Would to God it were in our power to keep things where they are in point of form, provided we were able to improve them in point of substance."{78} This was written by Burke to the Sheriff of Bristol in 1780. In the following year Josiah Tucker, Dean of Gloucester, published his Treatise Concerning Civil Government. This is an explicit review of Locke and his more radical followers, from the standpoint of the genuine Whig. Concerning the derivation of power in government he says: "The Ideas of a Quasi-Contract contain our own on this Head, and those of every constitutional Whig throughout the Kingdom." But to those who were then talking up "the state of nature," "inalienable rights" and "explicit contract," in Rousseau's sense, he made the suggestion: "That which the Lockians ought to have said is probably to this effect, that, tho' it be absurd to suppose that civil government, in general, took its rise from previous conventions, and mutual Stipulations actually entered into between Party and Party, and tho', whenever such a contract as here supposed did take place, at some very extraordinary conjuncture, -- (a contract, by the by, which could only bind the contracting parties:) -- yet as civil government in general is in reality a public trust, be the origin, and the form of it whatever they may; -- there must be some covenant or other, supposed or implied, as a condition necessarily annexed to every degree of discretionary power, whether expressed or not. Had they said only this, they would have exactly coincided with the ideas of a Quasi-Contract before mentioned. Nay more, they would have avoided all those paradoxes, which attend their present system, and render it one of the most mischievous, as well as ridiculous schemes that ever disgraced the reasoning faculties of human nature."{79}
With this passage in mind, it may be interesting to call attention to the fact that Dean Tucker supplies the instance of one Whig, at least, who had fully formed his opinion on the question of government before knowing definitely what "the judicious" Hooker had maintained on the subject.{80} Besides the expression Quasi-Contract is an expression of Suarez. As for the accuracy of his statement, that all constitutional Whigs held the doctrine of consent in this form, this is fairly attested to by the greatest of them. In his Thoughts in the Cause of the Present Discontents, Burke says clearly: "The king is the representative of the people; so are the lords; so are the judges. They all are trustees for the people, as well as the commons; because no power is given for the sole sake of the holder; and although government certainly is an institution of divine authority, yet its forms and the persons who administer it, all originate from the people."{81}
But for an adequately comprehensive summary of the Whig philosophy of government, together with a clear indication of its intimate dependence on the traditional theory of the Medieval scholastic writers, we will conclude this chapter with following rather lengthy passage from Burke's Fragments of a Tract on the Popery Laws. "As a law directed against the mass of the nation has not the nature of a reasonable institution, so neither has it the authority: for, in all forms of government the people is the true legislator; and, whether the immediate and instrumental cause of the law be a single person or many, the remote and efficient cause is the consent of the people, either actual or implied; and such consent is absolutely essential to its validity. To the solid establishment of every law, two things are essentially requisite: first a proper and sufficient human power to declare and modify the matter of the law; and next, such a fit and equitable constitution as they have a right to declare and render binding. With regard to the first requisite, human authority, it is their judgment they give up, not their right. The people indeed are presumed to consent to whatever the legislature ordains for their benefit; and they are to acquiesce in it, though they do not clearly see into the propriety of the means by which they are conducted to that desirable end. This they owe as an act of homage and just deference to a reason which the necessity of government has made superior to their own. But though the means, and indeed the nature of a public advantage, may not always be evident to the understanding of the subject, no one is so gross and stupid as not to distinguish between a benefit and an injury. No one can imagine then, an exclusion of a great body of men, not from favors, privileges and trusts, but from the common advantages of society, can ever be a thing, intended for their good, or can ever be ratified by any implied consent of theirs. If therefore, at least an implied human consent is necessary to the existence of a law, such a constitution cannot in propriety be a law at all.
"But if we could suppose that such a ratification was made not virtually, but actually; by the people, not representatively, but even collectively, still it would be null and void. They have no right to make a law prejudicial to the whole community, even though the delinquents, in making such an act, should be themselves the chief sufferers by it; because it would be made against the principle of a superior law, which it is not in the power of any community, or of the whole race of man, to alter -- I mean the will of him who gave us our nature, and in giving, impressed an invariable law upon it. It would be hard to point out any error more truly subversive of all the order and beauty, of all the peace and happiness of human society, than the position that any body of men have a right to make what laws they please; or that laws can derive any authority from their institution, merely and independent of the quality of the subject matter. No argument of policy, reason of State, or preservation of the constitution, can he pleaded in favor of such a practice. They may indeed impeach the frame of that constitution; but can never touch this immovable principle. This seems to be indeed the doctrine that Hobbes broached in the last century and which was then so frequently and so ably refuted. . . .
"In reality there are two, and only two, foundations of law; and they are both of them conditions without which nothing can give it any force; I mean equity and utility. With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with propriety and beauty, calls the mother of justice. All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice. The other foundation of law which is utility, must be understood, not of partial or limited, but of general and public utility, connected in the same manner with, and derived directly from, our rational nature; for any other utility may be the utility of a robber, but cannot be that of a citizen, the interest of the domestic enemy, and not that of a member of the commonwealth." Burke then quotes Cicero and the Roman Jurist Paulus against the Penal Laws, and continues: "It would be far more easy to heap up authorities on this article, than to excuse the prolixity and tediousness of producing any at all in proof of a point which, though too often practically denied, is in its theory almost self-evident. For Suarez, handling this very question, utrum de ratione et substantia Legis esse, ut propter commune bonum feratur, does not hesitate a moment, finding no ground in reason or authority, to render the affirmative in the least degree disputable; in quaestione ergo proposita (says he) nulla est inter auctores controversia; sed omnium commune est axioma, de substantia et ratione legis esse, ut pro communi bono feratur; ita ut, propter illud praecipue tradatur; having observed in another place, contra omnem rectitudinem est, bonum commune ad privatum ordinare, seu totum ad partem propter ipsam referre."
In view of what has been previously shown this passage from Burke, on analysis, will be found to contain a perfect digest of all that was characteristic of Medieval theory on government and law. But not only this, it also gives, in one clear statement, the grounds on which we parted from England and the principles upon which our Constitution was reared. And it is worth noting that the man who wrote the Reflections on the French Revolution, also said, in a private letter: "I am afraid that the American affairs will be settled, and the fate of that great portion of the world decided, in a manner very different from what, I am sure, we join in wishing. There has been too much disposition, from the beginning, to solve all these questions by force. I do not as yet find this disposition greatly altered by time or by events; and it is but too probable that if America should ever be established in a state of freedom, she will owe that liberal settlement to her separation from this country."{82}
APPENDIX
It should be noted that Selden and Cudworth each take into consideration only one portion of what, in the scholastic system, is constitutive of the natural law. Selden, moreover, still shows something of the influence of the Protestant notion of "personal inspiration," in that he understands conscience to be the "voice of God" in a literal sense. His concern was to state the fact and source of obligation. In this he was followed later by Butler, and by those who may be called the subjective intuitionists, among whom should be numbered Kant, and his followers. Cudworth, on the other hand, was taken up with the quest of that which formed the basis for deciding between right and wrong. As metaphysics became neglected, this problem gradually devolved into the empiricism of the Utilitarians who, on the basis of what was seen to be expedient, supplied something of a reasonable ground for judging what should be done, but could give no satisfactory ultimate account as to the why.
Of the subjective intuitionists J. S. Mill wrote very truly: "The notion that truths, external to the mind, may be known by intuition or consciousness independently of observation and experience, is, I am persuaded, in these times, the great intellectual support of false doctrines and bad institutions. By the aid of this theory, every inveterate belief and every intense feeling, of which the origin is not remembered, is enabled to dispense with the obligation of justifying itself by reason, and is erected into its own all-sufficient voucher and justification. There never was such an instrument devised for consecrating all deep-seated prejudices. And the chief strength of this false philosophy in morals, politics and religion, lies in the appeal which it is accustomed to make to the evidence of mathematics and of cognate branches of physical science" (Autobiography, chap. VII.).
Lecky, on the other hand, in his History of European Morals, draws an interesting outline of both schools with their contrasts. "The two rival theories of morals" says he "are known by many names and are subdivided into many groups. One of them is generally described as the stoical, the intuitive, the independent or the sentimental, the other as the epicurean, the inductive, the ultilitarian or the selfish. The moralists of the former school, to state their opinion in the broadest form, believe that we have a natural power of perceiving that some qualities, such as benevolence, chastity, or veracity, are better than others, and that we ought to cultivate them, and to repress their opposites. In other words, they contend, that by the constitution of our nature, the notion of right carries with it a feeling of obligation; that, to say a course of conduct is our duty, is, in itself, and apart frnm all consequences, an intelligible and sufficient reason for practising it; and that we derive the first principles of our duties from intuition. The moralist of the opposite school denies that we have any such natural perception. He maintains that we have by nature absolutely no knowledge of merit and demerit, of the comparative excellence of our feelings and actions, and that we derive these notions solely from an observation of the course of life which is conducive to human happiness. That which makes actions good is, that they increase the happiness or diminish the pains of mankind. That which constitutes their demerit is, their opposite tendency. To procure "that greatest happiness of the greatest number" is therefore the highest aim of the moralist, the supreme type and expression of virtue." (Pages 2, 3.)
Then some few pages further on, the same author states what is, in truth, the real root of the problem, though he refrains from any attempt at solving it himself. He says: "A theory of morals must explain, not only what constitutes a duty, but also how we obtain the notion of there being such a thing as duty. It must tell us not merely what is the course of conduct we ought to pursue, but also what is the meaning of the word 'ought,' and from what source we derive the idea it expresses."
Now, unlike either of the two schools outlined above, the Scholastic conception of the natural law includes both the objective and the subjective, and may be briefly defined thus: -- "The natural law is the objective content of the intellect representing, by its natural tendency, the proper interrelation of the elements of the universe and that due order, to which the will ought to conform in consequence of the contingency of the whole.
EXPLANATION OF TERMS.
The objective content of the intellect representing; that is to say it exists in a judgment. Suarez De Legibus II, c. 5, n. 14.
By its natural tendency means that the intellect left to itself is not free; it sees or it does not. Hence, the will should not interfere except there be ulterior evidence, present to the mind, of the prudence of such action on its part, in which case alone, it is allowable, i.e., not contrary to the nature of either faculty.
Proper interrelation, i.e., relations founded in the nature of things.
Due order, i.e., the order demanded by the nature and intrinsic purpose of things when subject to the disposal of our free will.
Ought to conform: that is to say, there is the obligation or moral necessity, so to dispose of things as not to contradict the true nature and purpose of their being, but to establish them, rather, in such order as their respective natures and proper ends will allow, in so far as this is ideally present to the mind.
Contingency of the whole, means that this obligation is seen to arise from the non-necessary existence of things in the universe, which necessarily argues the will of One who established it, and who, having the right to exact, must also intend that we should conform to His will thus manifested by the natural light of reason, since the purpose of our being, as that of all existing things, is and can be none other than Himself.
{1} The important words in this title are "Development" and "Tradition." In the present unsettled state of the world, we are too prone to forget the wisdom contained in Burke's words when he said: "The idea of inheritance furnishes a sure principle of conservation and a sure principle of transmission, without at all excluding a principle of improvement. It leaves acquisition free; but it secures what it acquires." (Reflections on the French Revolution.) But the principle of improvement presupposes a norm for discerning what in the past was true and sound, that there might be some assurance of the worth of the inheritance. Such a norm, was furnished by Vincent of Lerins in the 5th century, in his famous Commonitorium: "Is there to be no progress of religion within the Church of Christ? Certainly there can he, and great progress at that. Who is so envious of man's welfare, or so odious to God, that he would attempt to check such progress? But let it be such as to he truly an advance in matters of faith, not a change thereof. For it is in the nature of progress that in its development a thing remains identical with itself, whereas change implies that it is made over into something else. Let faith grow therefore as much and as vigorously as possible. Let there be advancement in understanding, knowledge and wisdom, in each and all, in the single individual as well as in the Church as a body. But let it be true in kind; that is, the same in dogma, the same in meaning, and with a like mind." Vincent, it is true, wrote this of faith applied to the facts of revelation; the same is true mutatis mutandis of reason applied to the facts of the natural order.
{2} De Officiis, I.
{3} Digest i, 4i
{4} History of Freedom and Other Essays, p. 16.
{5} 1859 Edition, p. 50. It was no doubt with the fifteenth chapter of the nineteenth 'book in the De Civitate Dei in mind that Rattier of Verona in the 8th century declared: "Note that God in the beginning when He created man said: 'Increase and multiply and fill the earth and subdue it and rule over the fishes of the sea, and the fowl of the air, and all living creatures that move upon the earth,' that you might understand that men placed not over men but over birds and beasts and fishes; that all were by nature made by God equal in nature but that inequality was brought about by the customs of men whereby some are subject to others in such a manner that those who are better and more virtuous are under the dominion of others." Quoted in Revue des Questions Historique, vol. 16 (1874).
{6} Lingard, History of Anglo Saxon Church, vol. II, p. 26, 2d edition.
{7} Guizot, Representative Government (1861), p. 217.
{8} City of God, XIX, 13.
{9} Fourth Treatise, ch. 9.
{10} Edited by A. E. Eliot (1843), ch. 3.
{11} Book I, ch. 16.
{12} Act I, scene 3.
{13} Works, Oxford University Press edition, vol. V, p. 92.
{14} Cf. Guizot, loc. cit., p. 219.
{15} Revue des Questions Historiques, vol. 16, p. 341 (1874).
{16} Expositio Evang. Sec. Luc. lib. IV, 29.
{17} Epist. ad Rom.. (13.1) homil., 23.
{18} Studies in History and Jurisprudence, p. 585.
{19} Gaius' definition runs, "Quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur, vocaturque jus gentium, quasi quo jure omnes homines utuntur." Instit. II, i. S. H. Butcher in Some Aspects of Greek Genius, p. 79, says:
"Not until man was rescued out of the kingdom of nature and taken up into the commonwealth of God and into personal relations with the Divine Being, could he be more than the member of a social organism, or an instrument for achieving the ends of the State. Then only did a universal morality become possible and the idea of personality receive its full content." Like. wise, Fustel de Coulanges, says: "If we recollect . . . the omnipotence of the states among the ancients . . . we shall see that this new principle (liberty of conscience) was the source whence individual liberty flowed. {20} City of God, XIX, c. 24.
{21} Etymolog., V, c. 4.
{22} Ibid., c. 6.
{23} Corpus Juris Canonici Dist., I, c. 2 and 5. Dist., II, c. i.
{24} Pp. 42,43.
{25} Claude E. H. Williamson, Democracy and Revolution. Irish Ecclesiastical Record, Jan., 1921, p. 63.
{26} Div. Instit., V, 15. Roberts and Donaldson's trans.
{27} The mediaeval love of liberty was well expressed by John of Salisbury: "Duae causae sunt, quas homines affectuosissime tuentur et quas proponunt animabus suis altera libertatis, altera fidei et religionis." Ep. 192, ad Ep. Exon.
{28} For the original Latin see A. J. Carlyle History of Mediaeval Political Theory, vol. II, p. 10.
{29} Pollock and Maitland, History of English Law, vol. I, 133.
{30} Ibid., 134.
{31} i. e, Morally perfective of man's nature.
{32} Corpus Juris Canonici Dist, IV, c. 2; also Julien Havet Melanges, 1895, pp. 673, 674.
{33} Q. 97, a. 3, ad 3.
{34} Lib I. c. VI.
{35} De Regimine Principum, I, 6.
{36} Bohn's edition of Scoble's trans., vol. I., p. 399.
{37} Quoted by Dunning: "Political Theories from Luther to Montesquieu," p. 96; 3 loc. cit., p. 388.
{38} Quoted by Chas. Jourdain La Royaute Française et le droit populaire. Revue des Questions Ristoriques, vol. 16 (1874), p. 379.
{39} Quoted from the same speech by G. Picot, Histoire des États Généraux, vol. II, 2d ed, pp. 6, 7.
{40} History of the Rise and Influence of Rationalism in Europe (1890), vol. II, p. 147.
{41} See Maitland 's Gierke, Political Theories of the Middle Ages, pp. 191, 192.
{42} James made an explicit appeal to the so-called Gallican Liberties; see "The Political Works of James I," reprinted by Chas. H. Mellwain, p. 119.
{43} Frizon: Vie du Cardinal Bellarmin, vol. I, p. 130.
{44} McIlwain, loc. cit., p. 153.
{45} Apologia, cap. XIII.
{46} Opera Omnia Fevre ed., vol. III, pp. 10-12.
{47} Victor de Chalambert: Histoire de la Ligue, vol. I, passim. For the appeal to this special motive see pp. 73-76.
{48} American Historical Review, October, 1913, P. 6.
{49} Vol. II, p. 176.
{50} De Legibus, III, c. 2, n. 4; c. 4, n. 12; c. 9, n. 6.
{51} Ibid., c. 4, n. 12.
{52} Works, edited by J. De Witt Andrews, vol. I, p. 543.
{53} Elliot's Debates, vol. II, p. 416.
{54} Vol. I, p. 337.
{55} Vol. II, p. 521.
{56} Opera Omnia, vol. I, p. 467.
{57} English Democratic Ideas in the 17th Century, p. 28.
{58} Loc. cit., p. 149.
{59} Fragments of a Tract on Popery Laws.
{60} Political Thought from Bacon to Halifax, p. 63.
{61} Lord Campbell, Lives of the Chief Juslices, vol. I, pp. 278-339.
{62} The Evolution of Parliament, pp. 175, 176.
{63} An Historical View of the English Government from the Settlement of the Saxons in Britain to the Revolution in 1688 (1812)-, vol. IV, pp. 294-300.
{64} Alexander Brown, The First Republic in America, p. 75.
{65} Political Thought from Bacon to Halifax, p. 76. {66} First published in 1678 (1838), vol. II, pp. 357, 359-360.
{67} See below, ch. 6.
{68} Henry Ford, Alexander Hamilton, p. 23.
{69} Suarez' definition of Eternal Law runs: "Eternal law is the free determination of the will of God, ordaining the rule to be observed, either, first generally by all parts of the universe as a means to a common good, whether immediately belonging to it in respect of the entire universe, or, at least in respect of the singular parts thereof, or secondly, to be specially observed by intellectual creatures in respect to their free operations." De Legibus, II, c. 3, n. 6. {70} Works (1837), vol. I, p. 71.
{71} Works, edited by Chas. Sayle, vol. I, p. xx and p. 24.
{71} Ibid., vol. II, pp. 288, 313.
{72} Edition of 1680, pp. 8-9.
{73} Prolegomena, 52.
{74} He need only have read one.
{75} (1805), vol. I, p. 20.
{76} W. E. H. Lecky, History of England in the Eighteenth Century, (1878), vol. I, pp. 20-21.
{77} Essay on The Philosophical Genius of Bacon and Locke.
{78} Correspondence, edited by C. W. Earle Fitzwiiliams and Sir R. Bourke, 1884.
{79} "Edition of 1781, p. 139. In a letter to W. Bradford, 1774, Madison Bays: "I was so lucky as to find Dean Tucker's tracts on my return home, sent by mistake with some other books imported this spring. I have read them with peculiar satisfaction and illumination with respect to the interests of America and Britain. At the same time his ingenious and plausible defence of parliamentary authority carries in it such defects and misrepresentations, as to confirm me in political orthodoxy -- after the same manner as the specious arguments of Infidels have established the faith of inquiring Christians." Works, Congress edition, vol. I, p. 17. This last has no reference to the principles on government as Madison evidently concurred with the Dean in that respect.
{80} Ibid, p. 160.
{81} Works, vol. II, p. 50.
{82} Correspondence, vol. II, p. 311.